Keep an open mind – this is a little tricky. When you get someone’s draft document and proceed to embed your proposed changes, do you make changes that don’t change the terms, but change the way the document “hangs together”? Do you make what are, in essence, trivial changes – changes that may be seen as annoying (and perhaps insulting) or may be seen as welcome and helpful, perhaps even ones that the original draftsperson might adopt as her own in future deals? Let’s explain by way of some examples.
What kind of document comments might be considered “trivial”? How about conforming a document that uses both “(the “thing”) and (“thing”) so that it reads one way or the other, not both ways in the same document? That’s pretty trivial even though grammarians might ponder over whether it should be (a “thing”). OK, few (if any) would conform an adversary’s draft to one style or the other if that were the only comment being made, even though one would expect that, when reviewing an internally prepared document, the same reviewer would “fix” the document by making its style internally consistent. But, what do you do if you are making a lot of substantive comments and adding a lot of defined terms in the process. Which style do you use? What if (the “thing”) had been used three times and (“thing”) had been used fifty-four times?
Some other examples (and Ruminations invites you to submit your own): TENANT as contrasted with Tenant or Tenant; lists such as: a, b and c OR lists like: a; b; and c; x, y or z OR x, y, or z; “described on Exhibit A attached hereto” as contrasted with “described on Exhibit A; Exhibit A or EXHIBIT A or EXHIBIT A or Exhibit “A.”; ending a sentence with a quote, thusly: you may think this is the “end”. OR you may think this is the “end.”; Section 1.2. OR Section 1.2; or (a), (b), (c) OR (i), (ii), (iii). Keep in mind; we’re not necessarily talking about which alternative is “better” – in some cases that might be the question; in most cases we’re asking, “what do you do if the draft you got is “all over the place”? How about a document that mixes, without rhyme or reason: “ten (10)” and just plain “10” or “ten.” How about changing the frequently seen, but always wrong: ‘ten ($10.00) dollars” to the always correct: “ten dollars ($10.00)”? Do you change “ten and no/100 dollars” to just plain, and exactly correct: “ten dollars”?
Now, we’re not talking about making a change because you think the draft you received is ambiguous or vague. In such cases, no draftsperson should take offence (offence, in England). After all, if one craftsperson thinks something is unclear then, by my thinking, it is, by definition, unclear. And we’re probably not talking about whether one should correct grammar, such as changing an improper “which” to “that.” We’re talking about making the document look professional – cleaning it up. After all, when the deal is done, regardless of where the draft lease, contract, mortgage, certificate or whatever originated, the final document has two authors, and you are one of them. When the user, typically a client and sometimes “the boss,” reads the document, you get credit or blame for its “professionalism” or sloppiness.
Here are some guidelines that have never really worked out for me. Yes, my experience has been that no matter what I do, it will be wrong. Perhaps that feeds my philosophy that, if you can’t figure out what to do, do what makes YOU happy. That way, at least one of you will be happy. I think I have four rules. First, if you know making these kinds of changes will drive the other side bonkers, don’t make them. Second, if you are only making a handful of changes, leave well enough alone – you’ll spend more time looking for trivial things to change than it will be worth and the likelihood of your getting a hearty “thank you” is slim indeed. Third, if you are making a lot of comments and those comments require you to decide what “style” to use, go ahead and conform the rest of the document to whatever you chose. Lastly, absent a grossly deviant document drafting style, follow the author’s style even if it isn’t your own.
At the end of the day, how do you strike the balance between welcome and irritating? Is there a difference between a document that had only a few errors and inconsistencies (indicating that its author either “cared” or copied a good document) or if the document is rife with inconsistencies (and you don’t want to be thought of as its “author”)?
What do you do in your own practice? How do you feel when someone has “fixed” your proposed document? How do you react? Please share your thoughts at www.retailrealestatelaw.com.